Miguel Angel Gomez v. J. Macdonald et al

Filing 20

OPINION and ORDER Adopting R&R as Corrected & Supplemented 19 by Judge Valerie Baker Fairbank. The Report and Recommendation [Doc # 19 ] is ADOPTED as corrected and supplemented. The petition for writ of habeas corpus [Doc # 1 ] is DISMISSED withou t prejudice. No later than Thursday, May 1, 2014, petitioner MAY FILE a copy of the instant habeas petition which he himself has personally signed and verified. If petitioner fails to do so, the dismissal of his habeas petition will be converted to a with prejudice dismissal (for lack of prosecution and continuing failure to obey court orders) without further warning or opportunity for objection. (jp)

Download PDF
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 EASTERN DIVISION 12 13 14 15 MIGUEL ANGEL GOMEZ, 16 Petitioner, 17 v. 18 19 J. MACDONALD, 20 Respondent. 21 ) ) ) ) ) ) ) ) ) ) ) ) ) ED CV 13-01367-VBF-SH OPINION and ORDER Adopting R&R as Corrected & Supplemented; Dismissing Habeas Petition without Prejudice due to Petitioner’s Failure to Sign and Verify Petition; Advising Petitioner that Dismissal Will Be Converted to “With Prejudice” If He Fails to File a Petition He Has Personally Signed & Verified No Later than Monday, April 28, 2014 22 23 This is a state prisoner’s action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 24 The U.S. Magistrate Judge has issued a Report and Recommendation (“R&R”) recommending 25 that the action be dismissed without prejudice on the grounds that petitioner has failed to 26 prosecute this action and has failed to verify the petition despite being ordered to do so – on 27 penalty of dismissal without prejudice – eight months ago and again four months ago. The time 28 1 1 for objections elapsed weeks ago, yet petitioner has neither filed objections nor sought an 2 extension of time in which to do so. For the reasons that follow, the Court will dismiss the 3 petition without prejudice as recommended by the R&R. The Court will, however, correct and 4 supplement the Report’s analysis as set forth below. Finally, the Court will warn petitioner that 5 if he fails to file a copy of the petition which he has personally signed and verified by a date 6 certain, the Court will convert the dismissal of his petition to a “with prejudice” dismissal for lack 7 of prosecution and failure to comply with court order. 8 9 DENIAL OF URBANO’S APPLICATION FOR “NEXT FRIEND” STATUS 10 The Court agrees with the Magistrate that Urbano has not shown that petitioner 11 cannot himself access the court or that Urbano has a significant relationship with petitioner 12 and is dedicated to petitioner’s best interests. See R&R at 3 (citing Whitmore, 499 U.S. at 163-64, 13 and Massie, 244 F.3d at 1194). “Most frequently, ‘next friends’ appear in court on behalf of 14 detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to 15 seek relief themselves.” Whitmore, 499 U.S. at 163. Congress codified the longstanding 16 common-law tradition of the next friend in 1948 by enacting 28 U.S.C. § 2242, which provides, 17 “Application for a writ of habeas corpus shall be in writing signed and verified by the person for 18 whose relief it is intended or by someone acting in his behalf.” See Whitmore, 499 U.S. at 163-64. 19 As the Supreme Court has cautioned, however, “‘next friend’ standing is by no means granted 20 automatically to whomever seeks to pursue an action on behalf of another.” Id. Rather, 21 22 23 24 25 26 decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for ‘next friend’ standing. First, a ‘next friend’ must provide an adequate explanation – such as inaccessibility, mental incompetence, or other disability – why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the next friend must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate. The burden is on the ‘next friend’ clearly to establish the propriety of his status . . . . 27 28 Whitmore, 499 U.S. at 164 (internal citations omitted). Urbano and petitioner have not submitted 2 1 evidence sufficient to find that they had the necessary significant pre-existing relationship for 2 Urbano to be allowed to prosecute this action as next friend. See Coalition of Clergy, Lawyers, 3 & Professors v. Bush, 310 F.3d 1153, 1158 (9th Cir. 2002) (“The actual practice codified by 4 Congress as to which persons could properly bring a petition was not without its limitations. An 5 examination of the pre-amendment cases demonstrates consistently that each time next-friend 6 habeas standing was granted by a federal court, there was a significant pre-existing relationship 7 between the prisoner and the putative next friend”, such as a wife as next friend for her husband, 8 a woman for her brother, a mother for her son, or a brother-in-law for a minor) (citations omitted). 9 Nor have Urbano and petitioner submitted evidence which would permit this Court to find 10 that petitioner suffers from some lack of access to this Court beyond the inconveniences inherent 11 in prison life. Cf. Galvan v. Horel, 2007 WL 4239543, *3 (E.D. Cal. Dec. 3, 2007) (“Fellow 12 inmate . . . seeks leave to proceed as ‘next friend’ for Petitioner. It is alleged that Petitioner cannot 13 read or write English which hinders his ability to litigate this action, as there are only a few fellow 14 inmates [who] are bilingual to assist him. Although it is unfortunate that Petitioner is not literate 15 in the English language, this barrier is present in a majority of pro se prisoner actions, and 16 Petitioner is no different from those litigants.”). 17 18 DISMISSAL WITHOUT PREJUDICE DUE TO FAILURE TO SIGN AND VERIFY 19 First, the Court agrees that the petition is subject to dismissal without prejudice, in 20 the Court’s discretion, due to petitioner’s failure to verify it as required by Rule 2© of the 21 Rules Governing Section 2254 Cases in the U.S. District Courts (“Sec. 2254 Rules”). See R&R 22 at 2; see also Calderon v. U.S. Dist. Ct. for Cent. Dist. of Calif., 127 F.3d 782, 788 n.4 (9th Cir. 23 1997) (“A habeas petition is also required to be verified personally by the petitioner . . . .”) 24 (quoting Rule 2© of the Sec. 2254 Rules (“The petition . . . shall be signed under penalty of 25 perjury by the petitioner.”)), overruled on other grounds, 163 F.3d 530 (9th Cir. 1998). “‘All 26 federal courts are vested with inherent powers enabling them to manage their cases and 27 courtrooms effectively.’” US v. Kent, 633 F.3d 920, 925 (9th Cir.) (quoting Aloe Vera of America, 28 Inc. v. US, 376 F.3d 960, 964-65 (9th Cir. 2004) (per curiam) (citation omitted)), amended on other 3 1 grounds & superseded on denial of reh’g en banc, 649 F.3d 906 (9th Cir. 2011).1 2 The Magistrate is also right to conclude (R&R at 2) that the petition is subject to 3 dismissal without prejudice because petitioner’s continuing failure to sign and verify his 4 petition violates C.D. Cal. LCivR 11-1. It is well settled that a district court may also dismiss 5 an action “based on a party’s . . . failure to comply with federal or local rules of civil procedure.” 6 US v. Real Property Located at 2855 Peter St., 2014 WL 279598, *4 (D. Haw. Jan. 23, 2014) 7 (citing, inter alia, Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming discretionary 8 dismissal of complaint due to plaintiff’s failure to comply with local rules) and Buss v. W Airlines, 9 Inc., 738 F.2d 1053, 1054 (9th Cir. 1984) (same)). “‘This measure is available to the district court 10 as a tool to effect management of its docket and [to] avoid[] . . . unnecessary burdens on the tax- 11 supported courts and [on] opposing parties.’” Smith v. Scott, – F. Supp.2d –, 2014 WL 29607, *2 12 (S.D. Ohio Jan. 3, 2014) (quoting Knoll v. AT&T, 176 F.3d 359, 363 (6th Cir. 1999)). 13 14 The Court cannot agree, however, with the Report’s statement that “[s]ince petitioner 15 has failed to file a verified habeas petition, the Petition must be dismissed.” R&R at 2 16 (emphasis added). The Ninth Circuit has expressly rejected the proposition that “it is reversible 17 error for a district court to address the merits of an unverified petition.” See Hendricks v. Vasquez, 18 908 F.2d 490, 491 (9th Cir. 1990). Rather, the Ninth Circuit holds, while a district court “may 19 refuse to file, or may dismiss, an unsigned and unverified petition”, Hendricks, 908 F.2d at 491 20 (citing, inter alia, In re Application of Gibson, 218 F.2d 320 (9th Cir. 1954)), “the defect is one 21 that the district court may, if it sees fit, disregard.” Hendricks, 908 F.2d at 491 (citing district- 22 court decisions from other circuits); see, e.g., Martin v. Marshall, 2009 WL 3122551, *1 n.2 (C.D. 23 Cal. Sept. 25, 2009) (Klausner, J.) (“Respondent also moves to dismiss the petition because it is 24 not verified. Because petitioner signed the proof of service attached to the petition, the Court 25 1 26 27 28 Cf. Ryan v. Gonzales, – U.S. –, 133 S. Ct. 696, 708 (2013) (citing Enelow v. NY Life Ins. Co., 293 U.S. 379, 382, 55 S. Ct. 310 (1935) (a court may stay a case “pending before it by virtue of its inherent power to control the progress of the cause so as to maintain the orderly processes of justice”) (citing Griesa v. Mut. Life Ins. Co. of NY, 165 F. 48, 50, 51 (8th Cir. 1908))); Redfield v. Ystalyfera Iron Co., 110 U.S. 174,176, 3 S. Ct. 570, 572 (1884) (“This delay in prosecution would certainly have justified the court in dismissing the action on its own motion.”). 4 1 elects to disregard the deficiency.”) (citing Hendricks). 2 Nonetheless, in keeping with the customary practice of judges in this district, the Court 3 will exercise its discretion to dismiss the petition without prejudice due to petitioner’s failure to 4 sign and verify the petition. See, e.g., Picquelle v. People of California, 2009 WL 1514658 (C.D. 5 Cal. May 27, 2009) (Dean Pregerson, J.); Luong Nguyen v. Busby, 2011 WL 9158277, *1 (C.D. 6 Cal. Nov. 8, 2011) (Olguin, M.J.) (after “the Court dismissed the petition with leave to amend 7 because the Petition was not signed or verified”, petitioner filed an amended petition which was 8 properly signed and verified), R&R rejected on other grounds, 2012 WL 4513784 (C.D. Cal. Oct. 9 1, 2012) (Dean Pregerson, J.).2 This is particularly appropriate given that the Court has made 10 petitioner aware of the need to personally sign and verify his petition himself and has given him 11 ample time to do so. Petitioner has already had at least three opportunities to avert dismissal 12 without prejudice by simply singing and verifying a copy of his own petition and filing that copy: 13 when the Magistrate ordered petitioner to do so in August 2013 (Doc 7), when the Magistrate 14 ordered him to do so in November 2013 (Doc 17), and when the Magistrate issued the Report 15 recommending dismissal without prejudice in February 2014 (Doc 19). 16 17 DISMISSAL WITHOUT PREJUDICE FOR LACK OF PROSECUTION 18 Second, the Court agrees that the petition should be dismissed sua sponte without 19 prejudice due to petitioner’s failure to prosecute, pursuant to both Fed. R. Civ. P. 41(b) and 20 the Court’s inherent authority. See R&R at 3 (citing Link, 370 U.S. at 629-30); see also 21 22 23 24 25 26 27 28 2 The Court notes that when district courts in our district have overlooked a habeas petitioner’s failure to sign and verify his petition, they have often done so in order to deny the petition on its merits. See, e.g., Walton v. Clark, 2010 WL 4672251, *4 (C.D. Cal. July 20, 2010) (“Respondent argues that the petition should be dismissed without prejudice because Petitioner failed to sign it. * * * Respondent further argues that the petition is untimely. Because the Court denies the Petition on its merits, it declines to consider these procedural arguments.”), R&R adopted, 2010 WL 4672353 (C.D. Cal. Nov. 8, 2010) (Feess, J.); Orrostieta v. Virga, 2010 WL 9160517, *1 n.2 (C.D. Cal. Dec. 14, 2010) (notwithstanding’s contention that habeas petition should be dismissed because it was unsigned, “[t]he Court exercises its discretion to reach the merits of Petitioner’s claims despite the pleading defect” and recommends denying petition on its merits), R&R adopted, 2011 WL 334824 (C.D. Cal. Jan. 28, 2011) (Matz, J.). 5 1 Morrow v. Sacramento DEA, 2014 WL 907349, *2 (E.D. Cal. Mar. 7, 2014) (collecting authorities 2 for the proposition that court may dismiss sua sponte for lack of prosecution and/or failure to 3 comply with court orders, including Hells Canyon Preservation Council v. US Forest Service, 403 4 F.3d 683, 689 (9th Cir. 2005)). As noted, by Order dated August 20, 2013 (Doc 07), the Court 5 directed petitioner to sign and verify the petition and send it back within twenty days, but he did 6 not do so. About three months later, the Court’s November 19, 2013 Order (Doc 17) again 7 instructed the petitioner to sign and verify the petition and send it back within twenty days. In 8 each instance the Court warned petitioner that his petition could be dismissed without prejudice 9 if he failed to provide the Court with a signed and verified version. 10 Preliminarily, the Court need not wait for a motion to dismiss but may dismiss sua 11 sponte for failure to prosecute. See Ash v. Cvetkov, 739 F.3d 493, 496 (9th Cir. 1984); 12 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see, e.g., Avery v. Cash, 2013 WL 13 2250990, *1 (C.D. Cal. May 21, 2013) (citing Link, 370 U.S. at 629-30). The Court, however, 14 should take care to show that it considered alternatives less drastic than dismissal, particularly if 15 dismissal is sua sponte. See Molski v. Pismo Bowl, 248 F. App’x 827, 830 (9th Cir. 2007) 16 (although “appellate courts have ‘never held that explicit discussion of alternatives is necessary 17 for an order of dismissal to be upheld’”, the sua sponte dismissal had to be vacated under the 18 circumstances because although the panel understood “the frustration of the District Judge in 19 dealing with this type of litigation, . . . the law requires that certain considerations be taken into 20 account before dismissal. [The district judge] did not give us any indication that he weighed the 21 required factors, which leaves us in the dark as to whether he even considered them.”). 22 23 The Report asserts without discussion that “[a]fter weighing the relevant facts, the 24 Court finds that this action should be dismissed without prejudice” for lack of prosecution, 25 R&R at 3. The Court would more specifically note that “[i]n determining whether to 26 dismiss this action due to plaintiff’s failure to prosecute or comply with Court orders, the 27 Court must consider the following five factors: ‘(1) the public’s interest in expeditious 28 resolution of litigation; (2) the court’s need to manage its docket, (3) the risk of prejudice to the 6 1 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 2 availability of less drastic sanctions.’” Ha v. Milosnic, 2013 WL 3933929, *2 (C.D. Cal. July 30, 3 2013) (Fairbank, J.) (quoting Carey v. King, 856 F.3d 1439, 1440 (9th Cir. 1998)); see also In re 4 Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (dismissal for failure to prosecute); Ferdik v. Bonzelet, 5 963 F.3d 1258, 1260 (9th Cir. 1992) (dismissal for failure to comply with court orders). 6 The Court acknowledges that dismissal for failure to prosecute is a harsh penalty, Martin 7 v. Colvin, 2014 WL 358588, *2 (W.D. Wash. Jan. 31, 2014) (citing Henderson v. Duncan, 779 8 F.2d 1421, 1423 (9th Cir. 1986)), which “should ‘be utilized only in extreme situations’”, St. Prix 9 v. Sirius XM Satellite Radio, 2014 WL 405812, *2 (S.D.N.Y. Jan. 29, 2014) (quoting US v. 10 Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.2004)). Nonetheless, dismissal without prejudice 11 is appropriate here under the Carey v. King standard. 12 13 The first and second Carey factors weigh in favor of dismissal, because petitioner’s 14 ongoing failure or refusal to provide a signed, verified petition by court-imposed deadlines thwarts 15 the public’s interest in expeditious resolution of litigation (the first factor) and impairs the court’s 16 ability to manage its docket (the second factor). See Pagtalunan v. Galazas, 291 F.3d 639, 642 17 (9th Cir. 2002); Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999); see, e.g., 18 dismissing for lack of prosecution: Bell v. Valenzuela, 2012 WL 6642674, *2 (C.D. Cal. Dec. 5, 19 2012) (“[p]laintiff failed to timely file his [FAC] despite requesting an extension to do so” and the 20 Order granting the extension was returned to the Court as undeliverable because plaintiff had 21 failed to apprise the court of an address change), R&R adopted, 2012 WL 6643160 (C.D. Cal. 22 Dec. 19, 2012) (Feess, J.); Jackson v. Cate, 2012 WL 6964422, *2 (C.D. Cal. Nov. 14, 2012) ( 23 “[a]s a result of Plaintiff’s failure to file a Second Amended Complaint, this action has been and 24 will continue to be stalemated.”), R&R adopted, 2013 WL 372575 (C.D. Cal. Jan. 30, 2013) 25 (Kronstadt, J.); Dawson v. Watanathia, 2013 WL 1247641, *2 (C.D. Cal. Feb. 26, 2013) (Carey 26 factors 1 and 3 favored dismissal because due to “plaintiff’s failure to return the service package, 27 this action has been and will continue to be stalemated.”), R&R adopted, 2013 WL 1248680 (C.D. 28 Cal. Mar. 27, 2013). The fact that plaintiff is pro se does not entitle him to thwart these important 7 1 public policies, as an “individual representing himself or herself . . . is nonetheless bound by the 2 Federal Rules of Civil Procedure, the Local Rules, and all applicable law.” Meeks Junior v. Wells 3 Fargo Bank, 2014 WL 295171, *1 (E.D. Cal. Jan. 27, 2014) (citing E.D. Cal. LCivR 183(a)). 4 5 The third Carey factor weighs in favor of dismissal, because prejudice to the opposing 6 party may be presumed from unreasonable delay. See In re Eisen, 31 F.3d at 1452-53 (“‘the 7 failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of 8 a showing of actual prejudice to the defendant.’”) (quoting Anderson v. Air West, Inc., 542 F.2d 9 522, 524 (9th Cir. 1976) and citing Morris v. Morgan Stanley & Co., 942 F.2d 648, 651-52 (9th 10 Cir. 1991)); Moore, 589 F.2d at 967-68. Likewise, where a party offers a poor excuse or no 11 excuse for failing to comply with a court’s order, the prejudice to the opposing parties is sufficient 12 to favor dismissal. See Yourish, 191 F.3d at 991-92. Plaintiff could rebut this presumption of 13 prejudice by an affirmative showing of just cause for his delay and failure to prosecute, see Eisen, 14 31 F.3d at 452-53, but he has not even attempted to do so. 15 16 The fourth Carey factor, the public policy favoring resolution of cases on their merits 17 does not weigh against dismissal where, as here, petitioner fails to make reasonably diligent 18 effort to move the case towards that disposition. The Ninth Circuit “recognize[s] that this factor 19 lends little support to a party whose responsibility it is to move a case toward disposition on the 20 merits but whose conduct impedes progress in that direction.” In re PPA Prods. Liab. Lit., 460 21 F.3d 1217, 1226 (9th Cir. 2006). “As such, this factor has little weight in cases such as this where 22 the plaintiff essentially appears to be unable or unwilling to proceed with the action.” Zamani v. 23 Colvin, 2013 WL 3744217, *2 (E.D. Cal. July 15, 2013) (citing PPA, 460 F.3d at 1226, and Lopez 24 v. Wash. Mut. Bank, 2010 WL 2629039, *1 (E.D. Cal. June 25, 2010)). Moreover, because the 25 Court is dismissing without prejudice, the policy in favor of resolving cases on their merits 26 is not thwarted by dismissal. Cf. Cardiff v. Tingy, 2006 WL 1343441, *3 (N.D. Cal. May 17, 27 2006) (“The only factor which weighs against dismissal of this action under Rule 41(b) is that 28 which favors the disposition of actions on their merits. Because the Court chooses to dismiss this 8 1 action without prejudice, however, the weight of this factor is mitigated.”) (emphasis added). 2 3 As for the fifth Carey factor, the Court finds that no available lesser sanctions would 4 be effective rather than outright dismissal, because the Court has twice warned petitioner to 5 sign and verify his petition and he has failed to do so over a prolonged period of time. See, e.g., 6 Dawson, 2013 WL1247641 at *2 (“[U]nder the circumstances presented (i.e., plaintiff’s . . . failure 7 even to respond to the Order to Show Cause), it does not appear to the Court that there any less 8 drastic sanctions available . . . .”); Barajas v. San Bernardino Sheriff’s Dep’t, 2009 WL 1605706, 9 *2 (C.D. Cal. June 2, 2009) (Fairbank, J.) (“The fifth factor – availability of less drastic sanctions 10 – also weighs in favor of dismissal. The Court cannot move the case toward disposition without 11 Plaintiff’s compliance with court orders or participation in its litigation. Plaintiff has shown that 12 he is either unwilling or unable to comply with court orders by filing responsive documents.”). 13 Moreover, the R&R itself constituted a third instance of notice to petitioner that he must 14 personally sign and verify his petition or risk dismissal without prejudice – and an opportunity to 15 seek permission to do so belatedly. See Poster v. Barnes, 2013 WL 1898539, *2 (C.D. Cal. Mar. 16 29, 2013) (Abrams, M.J.) (“[P]etitioner was cautioned about the possibility of dismissal in the 17 February 22, 2013 Order, and will be provided with additional notice through this Report and 18 Recommendation.”), R&R adopted, 2013 WL 1898536 (C.D. Cal. May 6, 2013) (Collins, J.). 19 20 Finally, the Court notes that it has waited four months after the passage of the latest 21 court-ordered deadline for petitioner to sign and verify his petition before ordering 22 dismissal without prejudice. See Jackson v. Mulroy, 12 F. App’x 80, 82-83 (2d Cir. 2001) (“Nor 23 did the district court fail to consider Jackson’s right to due process and the efficacy of lesser 24 sanctions: the court permitted Jackson to proceed in forma pauperis and expressly invited him to 25 submit a complaint more clearly spelling out the basis for his claims and the relief sought. Before 26 dismissing the action, moreover, the court waited five months past the 30-day deadline it had 27 given Jackson for filing an amended complaint. [T]he district court did not abuse its discretion.”). 28 9 1 As recommended by the R&R at 3, the dismissal will be without prejudice. The 2 Court determines that with-prejudice dismissal at this stage would be too harsh despite the 3 plaintiff’s dereliction. See Rich v. Wexford Health Sources, Inc., 2013 WL 4774723, *3 (D. Ariz. 4 Sept. 4, 2013) (“The Court finds that only one less drastic sanction is realistically available. Rule 5 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits 6 ‘[u]nless the court in its order for dismissal otherwise specifies.’ In the instant case, the Court 7 concludes that a dismissal with prejudice would be unduly harsh.”). If petitioner makes no use 8 of this last opportunity to provide the Court with a habeas petition which he has personally signed 9 and verified, however, dismissal with prejudice will be appropriate and will be ordered. 10 11 ORDER 12 The Report & Recommendation [Doc #19] is ADOPTED as corrected and supplemented. 13 The petition for writ of habeas corpus [Doc #1] is DISMISSED without prejudice.3 14 15 16 No later than Thursday, May 1, 2014, petitioner MAY FILE a copy of the instant habeas petition which he himself has personally signed and verified. 17 If petitioner fails to do so, the dismissal of his habeas petition will be converted to a with- 18 prejudice dismissal (for lack of prosecution and continuing failure to obey court orders) without 19 further warning or opportunity for objection.4 20 21 22 23 24 25 26 3 See C.D. Cal. LCivR 41-2, Dismissal - Effect (“Unless the Court provides otherwise, any dismissal pursuant to L.R. 41-1 shall be without prejudice.”), noted by Walker v. Metropolitan Life Ins. Co., 2009 WL 2048328, *3 (C.D. Cal. July 9, 2009) (Philip Gutierrez, J.); C.D. Cal. LCivR 41-3, Reinstatement - Sanctions (“If any action dismissed pursuant to L.R. 41-1 is reinstated, the Court may impose such sanctions as it deems just and reasonable.”); C.D. Cal. LCivR 41-4, Refiling of Dismissed Action (“If any action dismissed pursuant to L.R. 41-1 is refiled as a new action, the party filing the later action shall comply with the requirements of L.R. 81-1.2.2.”). 4 27 28 See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671 (9th Cir. 1981) (after dismissing the original complaint for failure to set forth a short, clear, and concise statement of the claims in violation of Fed. R. Civ. P. 8(a) and 8(e) and failing to state a claim on which relief could be granted under Fed. R. Civ. P. 12(b)(6), the district court did not abuse its discretion in dismissing 10 1 The Court will not issue a final judgment at this time. 2 IT IS SO ORDERED. 3 4 DATED: March 31, 2014 5 6 VALERIE BAKER FAIRBANK SENIOR UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 the amended complaint with prejudice and denying plaintiff’s motion for leave to further amend)). 20 Cf. also, e.g., Ferguson v. Pagati, 2013 WL 3989426, *1-*2 (C.D. Cal. Aug. 1, 2013) (stating, in pro se prisoner’s civil-rights action, “The first amended complaint is dismissed without prejudice for failure to state a claim . . . . If plaintiff wishes to continue pursuing this action, he MAY FILE a second amended complaint no later than . . . . If plaintiff fails timely to file a second amended complaint, the dismissal will be converted to a with-prejudice dismissal due to lack of prosecution and failure to comply with court order. Likewise, if plaintiff does file a second amended complaint but [it] still does not state a claim . . . , the dismissal will be converted to a with-prejudice dismissal.”); 21 Altman v. HO Sports Co., Inc., 2009 WL 4163512, *9 (E.D. Cal. Nov. 23, 2009) (same); 22 US ex rel. Tucker v. Nayak, 2008 WL 140948, *5 (S.D. Ill. Jan. 11, 2008) (dismissing case without prejudice for failure to satisfy Fed. R. Civ. P. 9(b) and 12(b)(6), affording the relator until a date certain to file an amended complaint to rectify those deficiencies, and stating, “The Court: * * * WARNS the relator that should she fail to timely move to amend her or should the proposed amended complaint fail to comply with Rules 9(b) and 12(b)(6), the Court may deny leave to amend and convert the dismissal of this case to one with prejudice.”); 17 18 19 23 24 25 26 27 28 Morgan v. Mason, 1999 WL 500997, *2 (D. Idaho June 1, 1999) (“[P]ursuant to Rule 8 of the Federal Rules of Civil Procedure, the court dismisses plaintiffs’ complaint with leave to amend. Plaintiffs are given thirty days to amend from the filing date of this order. Failure to timely amend will convert this dismissal to one with prejudice. Plaintiffs are also admonished that failure to amend so as to comply with Rule 8 may also result in dismissal with prejudice.”) (citing Nevijel, 651 F.2d 671), recon. denied, 1999 WL 718599 (D. Idaho July 21, 1999). 11

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?